Why ND Is Neither Necessary Nor Sufficient To Prevent Misrepresentation21 Feb 2010
One of the greatest concerns for authors who create works of opinion and place them under alternative copyright licences is that the licence will allow their opinions or arguments to be misrepresented. The Creative Commons Attribution-No-Derivatives licence appears to protect against misrepresentation by ensuring that the author’s original expression cannot be altered with the production of derivative works. But I would argue that ND cannot protect against mis-representation any better than using a copyleft licence such as Creative Commons Attribution-Sharealike, and that copyleft licences are also better for freedom of speech.
How ND Fails To Protect Against Misrepresentation
Fair use (or fair dealing) applies to any copyrighted work, including ND works. This allows quotation for review and critique. Selective quotation or mis-contextualization of quotes can all mis-represent the original argument. Even if the person quoting the original work does not have malicious intent towards the original author, they may be incompetent and accidentally misunderstand or misrepresent the argument.
Fair use (but not fair dealing) may also cover use of the work that is parodic, satirical or transformative. These are some of the strongest and clearest examples of freedom of speech but also potentially some of the most disrespectful and offensive derivatives of the original work.
Forbidding the reproduction of original arguments may make misrepresentation of them more rather than less likely. Rediscribing an argument or paraphrasing it rather than reproducing it can introduce differences from the original argument even if the person doing so is tryiing to be entirely accurate.
Even enforcing perfect fidelity within copies of a work cannot prevent it being misunderstood or misrepresented within society. Some of the most discussed books and essays, those that inspire the strongest opinions and reactions, are ones that very few people have read. This is as true of their proponents as of their opponents. And whether a work is untransformed or mashed up, audiences and other authors may not share the terms, competences, or aims of the original author of a cultural work.
ND therefore cannot protect against mis-representation in practice any better than the normal restrictions of copyright can. If it were the case that it did, what would happen if an ND work was in itself a mis-representation of other people’s ideas or of the facts?
How Copyleft Licences Protect Against Misrepresentation
The Creative Commons licences (and the GNU FDL) ensure that modified works must be marked as modifications. They cannot be passed off as the original untransformed work.
The Creative Commons licences forbid endorsement (and the FDL requires the removal of any endorsements of the original work in derivatives). A new work based on the original therefore cannot claim that the original author endorses the work or the opinions contained within it when they do not.
The Creative Commons licences protect or simulate the moral rights of paternity and integrity. Paternity means that the work cannot be passed of as anyone else’s, and integrity means that the work cannot be grossly mis-treated in a way that affects the author’s reputation. (Americans tend not to think that moral rights are not particularly strong in the US, but Monty Python got the rights to their shows back from the BBC in an American court case brought on the basis of their moral rights in the work.)
The Creative Commons licences also protect or simulate the moral right of repudiation. An author can demand the removal of their name from a work. This should not be neccessary given the requirements of marking and non-endorsement, but it is a useful extra measure for dissociating an author from uses of their work that they do not wish to be associated with.
Copyleft licences in general therefore allow misrperesentations to be corrected by modifying the text to produce a new derivative work, and to be addressed by ensuring the freedom to present as much of the misrepresentation as is required to criticise it.
How To Protect Against Misrepresentation
The solution to misrepresentation of arguments is not prohibition, it is correct attribution and the right of reply. Copyleft protects this as part of its protection of free speech in general. I recommend copyleft rather than permissive licences (such as Creative Commons Attribution-only) as these do not protect these rights for everyone, including the original author. Copyleft is therefore preferable to both ND and Attribution-only both for the specific case of protecting against misrepresentation and for the general case of protecting the freedom of speech within society.